Friday, March 28, 2008

Air Force Court creates service split on whether victim's trauma from appearing at trial is permissible aggravation evidence

In a published opinion issued Thursday, the Air Force Court created a service split on an important and recurring issue: whether the government may permissibly present evidence during its case in aggravation and argue on sentencing that the accused's offenses traumatized the victim by forcing her (or him) to appear at trial and discuss the accused's offenses. In United States v. Stephens, __ M.J. ___, No. ACM 36682 (A.F. Ct. Crim. App. Mar. 26, 2008), the Air Force Court said yes. The court didn't cite a previous published ACMR opinion holding no. United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987).

In Stephens, the military judge permitted the 13-year-old victim's father to testify during the government's sentencing case "concerning the impact that the pretrial and trial process (specifically testifying at the Article 32, UCMJ, investigation and at trial) had on his daughter. Her father told the members that the process of testifying multiple times and having to retell the story of her victimization 'has been totally devastating' . . . ." Id., slip op. at 9-10. At trial, the defense objected "that this line of testimony essentially punished [the accused] for asserting his constitutional right to a jury trial, to cross-examine the witnesses against him, and to have the government bear the burden of proving every element of the offenses with which he was charged." Id., slip op. at 10. The military judge nevertheless allowed the father to testify "to the emotional impact on BU of having to go through the judicial process." Id., slip op. at 11.

The Air Force Court affirmed the military judge's ruling. AFCCA reasoned that "it would be unreasonable for someone who commits an offense of this type to argue that it is unforeseeable that the victim of a sexual assault would be called testify [sic] at a trial. Further, it would be just as unreasonable to argue that one could not foresee that the act of testifying could be emotionally difficult for a 13-year-old girl." Id. The court concluded, "Having to testify at trial . . . is directly related to, and results from, the commission of the offense." Id.

In Carr, on the other hand, the Army Court held that the trial counsel's sentencing argument was "impermissible" because he "was allowed to argue adverse impact in aggravation flowing from the appellant's exercise of his constitutional rights to confront and cross-examine witnesses against him." Carr, 25 M.J. at 638 (footnote omitted). ACMR reasoned, "[W]e find that it is inappropriate that any party to a court-martial should be allowed to profit, directly or indirectly, by argument on findings or sentence regarding an exercise of a constitutionally protected criminal due process right." Id. at 639. The court continued:

While ensuring fundamental fairness at trial unavoidably impacts upon all parties thereto, such "impacts," in our view, relate directly to the due administration of the military justice system rather than to offenses on which there are findings of guilty. Accordingly, argument urging systemic impact resulting from the exercise of constitutional rights at trial is impermissible in aggravation. R.C.M. 1001(b)(4) (matters in aggravation must directly relate to or result from the offenses of which an accused has been convicted).

Id. The Army Court knocked two years off of Sergeant Carr's approved sentence to remedy the error. Id.

I find the Army Court's reasoning more convincing than the Air Force Court's. More importantly, so does the Eighth Circuit. In Burns v. Gammon, the "prosecutor asked the jury, while considering guilt and sentencing, to consider the fact that Burns, by exercising his constitutional right to a jury trial and to confront witnesses, forced the victim to attend trial, take the stand and relive the attack." 260 F.3d 892, 896 (8th Cir. 2001). Reaching a conclusion similar to that of the Army Court's in Carr, the Eighth Circuit held, "The prosecution cannot use the defendant's exercise of specific fundamental constitutional guarantees against him at trial." Id.

But whatever the correct outcome of this legal issue, Stephens cries out for CAAF review. It cannot be that a Soldier is entitled to a new sentencing hearing where the prosecution presents evidence like that in Stephens, but an Airman is not.


John O'Connor said...

My initial thought is that, on blance, AFCCA probably is right on the issue of admissibility, but this is a clear violation of O'Connor's Law. You have a sexual assault on a 13-year-old girl. You think you really need to have someone testifying that GOING THROUGH THE JUDICIAL PROCESS was hard for her in order to make sure you get a good sentence? Why operate so close to the fire? I wonder if the TC had researched the issue (and found the Army case) before going down this road. My guess would be no, and it's probably worse if the answer is yes.

Anonymous said...

Why is it that otherwise normal, reasonable people lose their heads when placed in the role of prosecutor?

Most prosecutors do it right, but a small minority does not, and then to compound the problem, courts will tie themselves in knots to ratify the misconduct, normally due to the (unspoken) acknowledgment that "we all know the accused is guilty." The same is true in the case of police or investigator misconduct.

In this particular case, the jury knows darn well the process is traumatic on the accusing witness--they just saw her testify. Why on Earth do you risk your case with improper evidence when you're going to get a good sentence anyway based upon the facts of the crime?

Enough ranting--AFCCA got it wrong, Army got it right. CAAF will fix it.

Phil Cave said...

CAAF should fix it and adopt the Army and 8th position.
Prosecutors do this in many cases, it is not limited to child abuse cases.
Prosecutors are seeking to punish and accused for exercising the constitutional right to a trial of the facts.

Marcus Fulton said...

It's ironic that the government's concern over the victim's anguish may now prolong it. I wonder if she'll have to testify at a sentencing rehearing. Even if she doesn't, the continued lack of finality seems like an unnecessary distress.

Anonymous said...

If you believe this decision is right, can you please explain how an RCM can trump the Constitution, b/c that's the bottom line of the AFCCA's opinion.

John O'Connor said...

Well, Anonymous #2, I think it's pretty much sophistry to contend that it's unconstitutional to cause an accused to suffer negative consequences from his exercise of a constitutional right. The most obvious example that comes to mind is that the law permits accuseds who plead guilty to be treated better in sentencing than those who don't. Or in other words, someone's exercise of his constitutional right to plead not guilty can be treated worse than someone who gave up that right. Same with those who give up the (likely subconstitutional) right to trial by members.

My off-the-cuff sense is that this evidence is probably analogous to commenting on an accused's failure to take responsibility for his offenses. I have not read any case law or given it anything near deep thought, as the main point of my post is the same as Anonymous #1's point, that it's stupid to create appellate risk when the victim's trauma is probably more or less self-evident.

Anonymous said...

Why is it that otherwise normal, reasonable, peopel lose their head when placed in the role of the prosecutor? Isn't that backwards? Too often we in the defense bar lose sight of the pain of being a crime vicim and treat victims with contempt. The ethical standards for our profession need to be toightened considerably.

Anonymous said...

And the spelling, dipshit. My goal is to provide a zealous defense for each of my clients, and if that means that a guilty person is acquitted, fine. (Just as long as they don't live next door to me after.)

Anonymous said...

I think this anonymous poster who keeps invoking the phrase: "we in the defense bar..." must be putting out a mock-moralistic-charicature. (I.e., "I think WE pharmacists should decide whether or not the patient deserves the prescribed medicine; I think WE firemen should decide if the building is worthy of saving," etc...)

"Pain?" First of all, most military crimes actually result in NO pain. Most military crimes result in theoretical bad results if the act were allowed to become common. (UA, drugs, disobedience, etc.) But "pain" is not the usual consequence. Second, the supposed "contempt" for victims is simply not true, and its a nonsequiter, anyway. And, for your information, Sharia law provides the best example of taking the victim into account.

It I sure hope this person is not really a defense attorney.

Hey, self-righteous hack, since you are so interested in tightening the professionalism of the military, would you shine my shoes? If you say no, then you cause me great pain and you're a traitor, to boot.